38.— (1)F157[Subject to subsection (5A), any officer] (other than a director or auditor), clerk or servant in the service or employment of the transferor and agreed by the transferor and transferee to be transferred under this section in connection with the business to be transferred shall on the transfer date be transferred from the service or employment of the transferor to and become an officer, clerk or servant (as the case may be) of the transferee with the same rights and subject to the same obligations and incidents in respect of such service or employment as he would have had or been subject to as an officer, clerk or servant of the transferor.

(2) F157[Subject to subsection (5A), every such officer], clerk or servant as aforesaid who is a member of or entitled to benefit under a pension or superannuation scheme of the transferor and every officer, clerk or servant who was formerly employed by the transferor in connection with the business agreed to be transferred and is a member of or entitled to benefit under any such scheme shall with effect from the transfer date become a member of and entitled to the corresponding benefit under a corresponding pension or superannuation scheme of the transferee on terms not less favourable than those under the first mentioned scheme and any person who is, by reason of the membership of or entitlement to benefit under the first mentioned scheme of any officer, clerk or servant employed or formerly employed in connection with the business agreed to be transferred, entitled to benefit thereunder, shall be entitled with effect from the transfer date to the corresponding benefit under the said corresponding scheme on terms not less favourable than those under the first mentioned scheme.

(3) F157[Subject to subsection (5A), any benefit] payable under a pension or superannuation scheme of the transferor to the personal representative (in his capacity as personal representative) of any deceased officer, clerk or servant formerly employed in the business agreed to be transferred and remaining unpaid on the transfer date shall become and be payable on that date by the transferee or under a corresponding pension or superannuation scheme of the transferee.

(4) F157[Subject to subsection (5A), service or employment] with the transferor shall, for the purpose of ascertaining and calculating the right to benefit under any such corresponding scheme, be taken into account as if it were service or employment with the transferee but the transfer of service or employment from the transferor to the transferee shall not, of itself, give rise to any claim to benefit under any such scheme.

(5) The Minister may, at the request of the transferor and transferee, include in F157[an order under section 33 (other than an order referred to in subsection (4) of that section)] such provisions as he thinks appropriate for transferring the whole or any part of the property and assets of any pension or superannuation scheme of the transferor to a corresponding pension or superannuation scheme of the transferee and vesting it in the trustees or other persons charged with the administration of such corresponding scheme and for winding-up, dissolving, terminating or modifying any such scheme of the transferor and the scheme shall have effect in accordance with any such provisions, any such scheme of the transferor being wound up, dissolved, terminated or modified, as the case may be.

F158[(5A) This section does not apply in relation to a transfer of the undertaking of a bank under an order under section 33(1) that is expressed as set out in section 33(4).]

(6) In this section—

“benefit” means any pension, annuity, lump sum, gratuity or other like payment given on retirement or payable after retirement in respect of past service or on or in connection with death during service or after retirement;

“pension or superannuation scheme of the transferor” means a scheme, arrangement or fund established in connection with the business of the transferor for the provision of benefit for the officers, clerks or servants (as the case may be) of the transferor or their dependants on their retirement or death;

“pension or superannuation scheme of the transferee” means a scheme, arrangement or fund established in connection with the business of the transferee for the provision of benefit for the officers, clerks or servants (as the case may be) of the transferee or their dependants on their retirement or death.